Virgilio Dela Cruz and Milagros Dela Cruz - Page 5




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          their benefits exceeds $44,000 by at least $32,259, they must               
          include in income 85 percent of the benefits.  See sec. 86(a),              
          (c).  Thus, respondent is correct in his determination that                 
          petitioners must include in income 85 percent of the Social                 
          Security disability benefits, or $9,619.                                    
               Petitioners’ primary argument is that the payments should              
          not be included in income because they are disability payments.             
          As noted above, however, Social Security disability benefits are            
          treated in the same manner as other Social Security benefits and            
          must be included in income to the extent required under section             
          86.  See Thomas v. Commissioner, supra.                                     
               A portion of the benefits was paid directly to Ms. Dela                
          Cruz’s lawyer.  As a general rule, income is taxed to the person            
          earning it even if the right to receive the income is                       
          contractually assigned to another person prior to its being                 
          earned.  Lucas v. Earl, 281 U.S. 111 (1930); Kenseth v.                     
          Commissioner, 114 T.C. 399 (2000), affd. 259 F.3d 881 (7th Cir.             
          2001); Banks v. Commissioner, T.C. Memo. 2001-48; see also S.               
          Rept. 98-23, 26 (1983), 1983-2 C.B. 328 (stating that the total             
          amount of Social Security benefits received by a taxpayer is not            
          to be reduced by attorney’s fees).  Under this principle, the               
          Social Security benefits paid to Ms. Dela Cruz are includable in            
          income despite the fact that her lawyer was paid directly by the            
          Social Security Administration.                                             






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